Coppens & Fischer (No 2)
[2024] FedCFamC1F 244
•12 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Coppens & Fischer (No 2) [2024] FedCFamC1F 244
File number: PAC 2561 of 2021 Judgment of: CAMPTON J Date of judgment: 12 April 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application under s 102NA of the Family Law Act 1975 (Cth) – Where none of the mandatory provisions of s 102NA(1)(c)(i), (ii), or (iii) apply – Where discretion under s 102NA of the Act is engaged and ought be exercised. Legislation: Family Law Act 1975 (Cth) s 102NA Division: Division 1 First Instance Number of paragraphs: 16 Date of hearing: 12 April 2024 Place: Sydney Solicitor for the Applicant: Barkus Doolan Winning Solicitor for the Respondent: Litigant in person ORDERS
PAC 2561 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FISCHER
Applicant
AND: MR COPPENS
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
12 APRIL 2024
THE COURT ORDERS THAT:
1.Upon noting that the requirements of s 102NA of the Family Law Act 1975 (Cth) will apply to any cross-examination occurring in these proceedings, the applicant must not cross-examine the respondent personally and any cross-examination must be conducted by a legal practitioner acting on behalf of the applicant.
2.Within seven days of the date of these orders, the applicant complete the “Scheme Application Form” and provide that form to Legal Aid NSW (…@...) for the allegation of a legal practitioner.
IT IS NOTED THAT
3.Pursuant to s 102NA(1), there is an allegation of family violence between the applicant and the respondent, and the Court has made an order that the requirements of subsection (2) are applied to cross-examination.
4.The parties have each been advised by the Court that:
(a)pursuant to those requirements, neither party may cross-examine the other party personally;
(b)pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;
(c)as to the availability of the Commonwealth Family Violence and Cross‑Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and
(d)a copy of these orders will be provided by the Court to Legal Aid NSW, which administers the said scheme.
5.If the applicant fails to apply to Legal Aid NSW for legal representation pursuant to these orders, Legal Aid NSW will notify the Court and the matter will be relisted for further directions.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Coppens & Fischer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
These reasons determine an oral application made by Ms Fischer (“the mother”), for an exercise of discretion in the making of an order pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”), prohibiting the father, who appears on his own behalf, from personally cross‑examining her in a parenting and property trial that will be scheduled to commence over five days on 23 September 2024.
The parties commenced cohabitation in or about 2006 and separated on 3 April 2021. There are three children of the relationship, X born 2011, Y born 2012, and Z born 2012. The parenting proceedings engage with issues as to the allocation of parental responsibility, and as to whether the father is to spend time with, or communicate with, the children. It is undisputed that the children will continue to live with the mother.
The mandatory provisions of s 102NA(1)(c)(i) – (iii) are agreed not apply in this case.
The father, for his part opposes the discretionary application of the section as identified in 102NA(1)(c)(iv). He correctly identifies that a final apprehended violence order (“AVO”) restricting and prohibiting his behaviour for the protection of the mother expired in early 2023. It is the father’s position that he denies all allegations of family violence. It is his submission that the making of the order as sought by the mother is unnecessary in those circumstances.
The mother makes extensive allegations as to family violence occasioned by the father, both during the period of cohabitation and after separation. In her trial affidavit the mother gives extensive evidence as to the father occasioning physical violence upon her by way of grabbing her neck, slapping her, and otherwise harming her. She gives evidence as to the father making life-threatening statements, and providing text messages that, if accepted, would establish a finding of family violence.
It is uncontroversial that at or about the date of separation, the police made a complaint on behalf of the mother, seeking an apprehended family violence order pursuant to the relevant state legislation, and that that order was varied in mid-2021 in the local court, subsequent to the mother’s complaints as to the father’s stalking and attendances at the Suburb D home.
In mid-2021, the father was charged with breaching the AVO, and with criminal counts of intimidation. At a hearing in the local court in mid-2022, the father was convicted of one count of breaching the AVO, and on the mother’s case, entered a bond to be of good behaviour. On the father’s case, there was no conviction. He contends that a conditional release order was made. That factual dispute cannot be determined for the purposes of this application.
It is uncontroversial that a final AVO restricting and prohibiting the father’s behaviour for the protection of the mother issued, and it remained in effect until early 2023.
The mother gives evidence that upon the AVO expiring and, on her case, the good behaviour bond completing, the father in mid-2023, commenced to randomly appear at the Suburb D home, causing her to fear for her safety. The mother gives further evidence as to the father being charged with a criminal assault and being subject to an AVO for the protection of Mr E. It’s the mother’s case that this charge and AVO is yet to be determined. The mother gives evidence in her affidavit as to the impact of engagement with the father, on both her wellbeing and on her capacity as the uncontested resident parent.
The parties have the benefit of a comprehensive report prepared by a single parenting psychiatric expert, Dr F, dated 20 November 2023.
CONSIDERATION
A reading of the legislation does not require the allegation of family violence to be recent. It does not require the allegations of family violence to be the primary foundations to conclude a finding as to risk. The object of the section is to ensure the protection of alleged victims of family violence from re-traumatisation due to being cross-examined by the alleged perpetrator.
The section seeks the preservation of the integrity of the evidence in the proceedings by ensuring that alleged victims of family violence can give their evidence in circumstances that promotes their ability to give that evidence in a clear and coherent fashion and seeks to ensure that a context of any power imbalance does not occur by way of direct cross-examination.
The allegations the mother makes as to family violence are serious. The court is obliged to accept those allegations, at least at their face value, at this time in the litigation. In this matter, the allegations of family violence cannot be said to be clearly spurious.
I am of the view in the circumstances of this case a discretion under s 102NA of the Act is engaged to be exercised.
For the foregoing reasons, I will make orders pursuant to s 102NA of the Act that will apply for the purposes of the trial, such that the father must not cross-examine the mother personally, and any cross-examination must be conducted through a legal practitioner acting on behalf of the father.
I will further make orders and notations for the engagement with NSW Legal Aid for the provision of funding to meet the father’s legal representative’s costs, pursuant to the Commonwealth Family Violence and Cross-examination of Parties Scheme.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 12 April 2024
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